19 Apr 2016

Translation of the Conclusions of the Appellate Court's Decision

This is a translation of numbers 3 and of the Appellate Court of Lisbon's decision in the case that has been filed by the McCann family against Gonçalo Amaral and others.

This blog would like to express its heartfelt gratitude to every one of you who have supported Gonçalo Amaral through this case. It is not over; but this is, without doubt, a significant and relevant decision that boosts our confidence in the Portuguese Courts and in a system that may be excruciatingly slow but ultimately serves its purpose of performing Justice.

Thank you.

3. Under articles 635, number 4, and 639, number 1, of the Civil Process Code, the matter of the appeal is delimited by the appellant’s conclusions.

The matter subject to decision is thus essentially centred on the evaluation of the alleged wrongfulness and the responsibility that derives from it, imputed to the 1st defendant [Gonçalo Amaral], now the appellant, of the publication, by the 2nd and the 3rd defendants, equally appellants, of the works at stake.

As far as personality rights are concerned, article 26, number 1, of the Constitution states that everyone has a right to a good name and reputation and to the protection of the intimacy of private and family life.

The same fundamental law protects, with equal dignity, freedom of expression, by stating under number 1 of article 37 that everyone has a right to express and to publicise their thoughts in words, image or by any other means, as well as the right to inform, to inform oneself and to be informed, without impediment or discrimination.

And also, under number 2 of article 38, freedom of press, by consecrating freedom of expression and of creation by journalists and their collaborators.

Number 2 of article 18 establishes, in the case of conflict between fundamental rights, that any legal restrictions to those rights must be limited to whatever is necessary in order to safeguard other rights or interests that are constitutionally protected.

On the other hand, in ordinary law, article 70 of the Civil Code consecrates, as a principle, that the law protects individuals against any illicit offence or threat to offend their physical or moral integrity, while article 80 of the same diploma states that everyone must respect someone else’s intimacy of private life.

Whenever there is a collision of rights that are equal or of the same kind, the holders must, under number 1 of article 335, cede as necessary in order for all of them to produce their effect equally, without greater damage for any one of them – while (under number 2 of the same article), if the rights are not equal or are of different species, the one that is considered superior must prevail.

Therefore, and as the dominant jurisprudence understands the matter:

“One of the limits to the freedom of information, which therefore is not an absolute right, is the safeguard of the right to a good name. Journalists, the media, are bound by ethical and deontological duties, and duties of rigour and objectivity.

- The media have the right, the social function, of spreading news and giving critical or non-critical opinions, and it is important that they do so with respect for the truth and for someone else’s intangible rights, as are personality rights.

- The right to honour, in a broader sense, and the right to freedom of press and of opinion are traditional areas of conflict.

- Criticism has a boundary in the rights of its targets, but it remains legitimate if it is sharp, steely, as long as it is not injurious, because so often therein lies the style of the author.

- To criticise implies to reproach, fault-finding that is aired in the media only stops being legitimate as a manifestation of individual freedom when it expresses objective antijuricity, violating rights that are extremely personal and which effect, in a more or less lasting manner according to men’s memory, assets that need to be preserved as are the rights here at stake, to honour, to a good name and to a social standing” (decision by the Superior Court, dated 20/1/2010, www.dgsi.pt)

In the case at hand, apart from the reporting of the facts that are part of the inquiry into the disappearance of Madeleine McCann, an analysis of the book and of the rest of the published material finds that the now 1st appellant [Gonçalo Amaral] therein sustains the thesis that an abduction did not take place, but rather the accidental death of the child, followed by a cover-up – through the concealment of her cadaver and the simulation of that crime – by plaintiffs Gerald and Kate McCann, now the subjects of the appeal.

It results from the aforementioned publication that the means of evidence and the indicia that it reports to are, essentially, those referred to and documented in the respective criminal enquiry.

Nevertheless, the exposed thesis, that the child died accidentally and that fact was concealed by the parents, who have broadcast, in order to deceive, the hypothesis of an abduction, is not new – the same is equally contained in the report which is mentioned under number 9 of the proven facts, determining the arguido constitution of said subjects of appeal [Kate and Gerry McCann], and was, after a copy of the inquiry was made public, published in the media (numbers 65 and 66 of proven facts).

As was stated in the decision, from this Section, concerning the appended injunction, the 1st appellant [Gonçalo Amaral], wanted, through this book – because the institution to which he was bound did not allow him to reply to attacks against his pride and honour, as a professional of the criminal investigation police – to expose his vision of the facts, and therefore the publication of said book has to be considered a legitimate exercise of the right to an opinion.

And because from the proved matter results that – apart from it being about facts that have been profusely published in the inquiry and even publicised through an initiative of the Republic’s Prosecutor General’s Office – it was the subjects of the appeal themselves [Kate and Gerry McCann] who, benefiting from an easy access, multiplied themselves in interviews and interventions in national and international media, one must conclude that it was them who, voluntarily, limited their rights to reservation and to the intimacy of private life.

By proceeding in this manner, they opened the way for anyone to equally express an opinion about the case, contradicting their thesis – without losing their right to exercise a legitimate, and constitutionally consecrated, right to an opinion and a freedom of expression of thought.

On the other hand, we cannot see how the right of the subjects of this appeal [Kate and Gerry McCann] to benefit, following their constitution as arguidos, from the guarantees of the penal process – including the right to a fair investigation and the right to freedom and safety – may be offended by the contents of a book which, in its essence, describes and interprets facts that are part of an inquiry whose contents have been published.

Nothing opposes that, although they have not been deemed sufficient to lead to a criminal charge, said facts are subject to diverse appreciation, namely in a work of literary nature.

Therefore, and because it is contained within consecrated rights, namely under numbers 37 and 38 of the Constitution, the publication at stake must be considered lawful.

Nonetheless, it is understood, in the decision under appeal, that because the 1st appellant, Gonçalo Amaral, was, until October 2, 2007, the coordinator of the criminal investigation into the disappearance of Madeleine McCann, he was, after his retirement on the 1st of July, 2008, subject to the duties of secrecy and reserve that are imposed to the employees that serve the Polícia Judiciária.

And, under such terms, although the introductory note in the book invokes personal reasons, in a situation of conflict with the rights to a good name and reputation of the subjects of the appeal, the appellant [Gonçalo Amaral] could not benefit, faced with the results of the investigation, of a broad and full freedom of expression – and thus his conduct would be unlawful, under article 484 of the Civil Code.

From what was above said about this matter, it is clearly understood that such argumentation cannot be sustained.

In effect, and independently of the reasons invoked by the appellant for the publication, it is hardly understandable that an employee, even more a retired one, would have to keep said duties of secrecy and reserve, thus being limited in the exercise of his right to an opinion, concerning the interpretation of facts that were already made public by the judiciary authority, and widely debated (in fact, largely by initiative of the intervenients themselves) in the national and international media.

In the absence of its primordial presupposition it must therefore be concluded against the previous decision, due to the lack of precedence of any of the requests that have been formulated by the current subjects of the appeal [Kate and Gerry McCann] – while the re-appreciation of the matter of fact that had been secondarily requested remains impaired.

4. From the above mentioned, it is agreed, in accordance with both appeals, to revoke the appealed decision and, considering the action against them to be unfounded, to acquit the appealing plaintiffs of the totality of the requests. The costs, in both instances [courts] are to be paid by the appealed subjects [Kate and Gerry McCann].

In effect, and independently of the reasons invoked by the appellant for the publication, it is hardly understandable that an employee, even more a retired one, would have to keep said duties of secrecy and reserve, thus being limited in the exercise of his right to an opinion, concerning the interpretation of facts that were already made public by the judiciary authority, and widely debated (in fact, largely by initiative of the intervenients themselves) in the national and international media.

‘And because from the proved matter results that – apart from it being about facts that have been profusely published in the inquiry and even publicised through an initiative of the Republic’s Prosecutor General’s Office – it was the subjects of the appeal themselves [Kate and Gerry McCann] who, benefiting from an easy access, multiplied themselves in interviews and interventions in national and international media, one must conclude that it was them who, voluntarily, limited their rights to reservation and to the intimacy of private life.

By proceeding in this manner, they opened the way for anyone to equally express an opinion about the case, contradicting their thesis – without losing their right to exercise a legitimate, and constitutionally consecrated, right to an opinion and a freedom of expression of thought.

On the other hand, we cannot see how the right of the subjects of this appeal [Kate and Gerry McCann] to benefit, following their constitution as arguidos, from the guarantees of the penal process – including the right to a fair investigation and the right to freedom and safety – may be offended by the contents of a book which, in its essence, describes and interprets facts that are part of an inquiry whose contents have been published.’

‘From the above mentioned, it is agreed, in accordance with both appeals, to revoke the appealed decision and, considering the action against them to be unfounded, to acquit the appealing plaintiffs of the totality of the requests.’

I’m struggling to see how Isabel Duarte is going to come up with an appeal which is even going to be allowed to get past the lodgment stage, against a unanimous verdict and judgment that states things like I’ve quoted above.

"And because from the proved matter results that – apart from it being about facts that have been profusely published in the inquiry and even publicised through an initiative of the Republic’s Prosecutor General’s Office – it was the subjects of the appeal themselves [Kate and Gerry McCann] who, benefiting from an easy access, multiplied themselves in interviews and interventions in national and international media, one must conclude that it was them who, voluntarily, limited their rights to reservation and to the intimacy of private life.

By proceeding in this manner, they opened the way for anyone to equally express an opinion about the case, contradicting their thesis – without losing their right to exercise a legitimate, and constitutionally consecrated, right to an opinion and a freedom of expression of thought.

The McCanns have given their version again and again and again but nobody else is allowed to speak against them. And the threats are still coming thick and fast. Anyone 'caught' selling a book. What about folk caught leaving children home alone and going out drinking. Doesn't that count for anything. Do they realise how ridiculous they look. I don't suppose they do.

Thanks for the link. I've read it and especially enjoy the bits mentioning Mcs witnesses and deliberations on the witnesses depositions.Yet we have ID telling foreign press the judgement was appreciation of law and not facts, when facts put forward by Mcs witnesses and other facts form the 16-page judgement.

@MaryB wrote:The McCanns have given their version again and again and again but nobody else is allowed to speak against them. And the threats are still coming thick and fast. Anyone 'caught' selling a book. What about folk caught leaving children home alone and going out drinking. Doesn't that count for anything. Do they realise how ridiculous they look. I don't suppose they do.

It's insufferably arrogant of the McCs to issue public threats like this. Book sellers should get together on this one and demand to know what the legal basis is for these threats.

The full translation is certainly 'unhelpful' for the McCanns as the final section states:

"The following factual matter was considered as proved in first Instance (court)"

...

"9. Pages 2587-2602 of the criminal investigation, 19.07.2007, chief Inspector Tavares de Almeida wrote a report in which the following section can be transcribed :

“From everything that was gathered, the facts point in the direction that the death of Madeleine McCann occurred, on the night of May 3rd of 2007, inside the apartment 5A, of the Ocean Club resort, occupied by the couple McCann and by their three children;” (...)

“From everything that was exposed from the AUTOS, we conclude that:

A) The minor Madeleine McCann died in the apartment 5A of the Ocean Club resort, on the night of May 3rd of 2007;

B) It was performed a simulation of kidnapping;

C) In order to avoid the death [alarm] of the minor before 22H00, it was created a situation of the children's surveillance by the McCann while the children slept;

D) Kate McCann and Gerald McCann are involved in the occultation of the cadaver of their child Madeleine McCann;

E) At this moment, there seems that there aren't strong indicia that the death of the minor didn't happen due to a tragic accident;

F) From what was obtained until now, everything points out that the McCann, as self-defence, didn't want to deliver immediately and voluntarily the cadaver, existing a strong possibility that the same was transported from the initial place of deposition. This situation is susceptible to raise questions about the circumstances under which the death of the minor occurred.

So we suggest that the 'Autos' be sent to the EX.mo Sr. Procurador Geral da República [General Attorney], in order to:

G) New interrogation of the Arguidos Kate and Gerry McCann;

H) Evaluation of the measure of restraint to be applied in this case;” Pages 2601 of criminal Investigation"

"The respective content (of the book) does not offend any of the fundamental rights of the plaintiffs, neither the respect to the right of privacy, according to the terms laid down in articles 80 and 81 of the Civil Code, in the sense that it was they themselves who, voluntarily, limited/waived this right, by having presented themselves on multiple occasions for interviews and social media interventions.

In the same way, with relation to their image and good name, by placing the case in the public domain and making it famous at world-wide level, (they) thereby opened all doors for all opinions, even those that were adverse to them. "

"The respective content (of the book) does not offend any of the fundamental rights of the plaintiffs, neither the respect to the right of privacy, according to the terms laid down in articles 80 and 81 of the Civil Code, in the sense that it was they themselves who, voluntarily, limited/waived this right, by having presented themselves on multiple occasions for interviews and social media interventions.

In the same way, with relation to their image and good name, by placing the case in the public domain and making it famous at world-wide level, (they) thereby opened all doors for all opinions, even those that were adverse to them. "

They were obviously naive in thinking they could run with the hare and hunt with the hounds.

Their witnesses depositions were useless, backfired in fact.All deemed associated to the MCs, not independent, thus not objective. Michael Wright's testimony is the worst, he helped them get hoisted by their own petard.

@MaryB wrote: What about folk caught leaving children home alone and going out drinking. Doesn't that count for anything.

I presume by this assertion, you are referring to the McCanns. Does this mean that you are of the belief that whatever happened to Madeleine, occurred because the McCanns left her alone in the apt. and went out drinking. If so, you must believe that a kidnapping by a third party transpired, thereby exonerating the aforementioned of any culpability other than neglect, which is of course what they have been propagating from the inception.

This is a theory which is diametrically opposed to the general consensus of opinion on this forum, who by default, believe that the neglect hypothesis is a red herring concocted by the McCanns.

@MaryB wrote: What about folk caught leaving children home alone and going out drinking. Doesn't that count for anything.

I presume by this assertion, you are referring to the McCanns. Does this mean that you are of the belief that whatever happened to Madeleine, occurred because the McCanns left her alone in the apt. and went out drinking. If so, you must believe that a kidnapping by a third party transpired, thereby exonerating the aforementioned of any culpability other than neglect, which is of course what they have been asserting from the inception.

This is a theory that is diametrically opposed to the general consensus of opinion on this forum who by default, have to believe that the neglect hypothesis is a red herring concocted by the McCanns..

@MaryB it does appear that no 'authority' has pulled the McCanns up on this, which is strange considering other cases of 'leaving' children even for 10 minutes, the 'guilty' party have been prosecuted for neglect. This is what we are led to believe through MSM etc and by the admission of the McCanns. The 'neglect' was to serve a purpose to enable a timeline for an 'abduction'' (which I believe as others do, never took place) so as Realist says, it is a red-herring! Yet, if this is the line (neglect) taken it is extremely odd that not one authoritity figure (social services etc) have stepped in and prosecuted as they would normally! And there has never been an explanation for this either?!

____________________“Basically, I’m just an ordinary, straightforward guy who’s the victim of the biggest f***-up on this planet – if you’ll excuse the language.”

Neglect wasn't their alibi, it was their reason as to how their daughter came to be abducted/kidnapped, because without an element of neglect, there couldn't possibly have been an abduction/kidnapping.

I don't believe, Maymuse and I stand to be corrected, that the Portuguese authorities take such a draconian stance on leaving one's child unattended as they do in other countries, the UK and US in particular.

@Realist, I thought that it is 'criminal' offence in Portugal and that this maybe was not pursued as if they were 'tried' for neglect/harm then if it proved later that a more serious offence had occurred ( death?) then they could not pursue that? I'm unsure however as I think that I read that, but a long time ago, and like you stand to be corrected

As you are probably aware, Tony Bennett did attempt to pursue a private prosecution against the McCanns in the UK, which was dismissed on the grounds that it was not within Uk jurisdiction. By then, I believe the Portuguese police had finally decided that the McCanns were the most logical suspects and were interested in far more serious issues than neglect.

Yes I was aware, and that in itself does not make sense... Not within UK jurisdiction? Yet they can interfere erm support the investigation to Madeleine missing? A crime is a crime wherever you may be; perhaps I look at things too simplistic & I do not have a law degree...but after all in the words of CM "She is a child"?!

Neglect wasn't their alibi, it was their reason as to how their daughter came to be abducted/kidnapped, because without an element of neglect, there couldn't possibly have been an abduction/kidnapping.

Not strictly so, they could have had a lot to drink and gone to bed sloshed, and when they awoke in the morning, Maddie was gone. So there are other scenarios that don't involve them leaving/neglecting 3 toddlers 5 nights in a row.... just saying

Neglect wasn't their alibi, it was their reason as to how their daughter came to be abducted/kidnapped, because without an element of neglect, there couldn't possibly have been an abduction/kidnapping.

Not so, they could have had a lot to drink and gone to bed sloshed, and when they awoke in the morning, Maddie was gone. So there are other scenarios that don't involve them neglecting 3 toddlers 5 nights in a row.... just saying

Eddie and Keela alerted to items and places concerned with the McCanns - and importantly to no other items or places.

According to Eddie and Keela, the body of Madeleine McCann lay lifeless behind the sofa in Apartment 5a, clinging to the only thing from which she could derive any comfort; a soft toy called 'Cuddle cat'.

Kate's book 'madeleine', Page 219: "Did they really believe that a dog could smell the 'odour of death' three months later from a body that had been so swiftly removed?"

After forensic analysis of the 'Last Photo' there is little doubt now that the pool photo CANNOT POSSIBLY have been taken on the Thursday 3rd May, but most likely on the Sunday 29th April. So, where was Madeleine at lunchtime on Thursday?

John McCann:"This was terrible for them, Kate dressed Amelie in her sister's pyjamas and the baby said: "Maddy's jammies, where is Maddy?"Martin Roberts:"If Madeleine's pyjamas had not, in fact, been abducted then neither had Madeleine McCann."Dr Martin Roberts: A Nightwear Job

Death Toll in McCann Case

Gerry McCann called for an example to be made of 'trolls'. SKY reporter Martin Brunt doorstepped Brenda Leyland on 2 October 2014 after a 'Dossier' was handed in to Police by McCann supporters. She was then found dead in a Leicester hotel room the next day. Brenda paid the price.

Colin Shalke died suddenly in mysterious circumstances with a significant amount of morphine in his system. At the Inquest the coroner said there was no evidence as to how he had come to take morphine, and no needle mark was found.

Ex-Met DCI Andy Redwood had a "revelation moment" on BBC1's Crimewatch on 14th October 2013 when he announced that Operation Grange had eliminated the Tanner sighting - which opened up the 'window' of opportunity' from 3 mins to 45 mins, in accordance with their remit, to allow the staged abduction to happen.

Dr Gonçalo Amaral, retired PJ Coordinator: "The English can always present the conclusions to which they themselves arrived in 2007. Because they know, they have the evidence of what happened, they don't need to investigate anything. When MI5 opens their files, then we will know the truth."

Tracey Kandohla: "A McCann pal told The Sun Online: "Some of the savings have been siphoned off from the Find Maddie Fund into a fixed asset account, which financial experts have advised them to do. It can be used for purchases like buying a house or building equipment."

The McCanns, Operation Grange and the BBC are all working towards one goal - to make us keep looking at what happened (or didn't happen) on 3rd May, instead of looking at what happened days earlier. There is NO evidence of an abduction. Smithman is ALL they have got. Without that, they are sunk. No wonder Operation Grange clings on to Smithman...